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MagistratePartially AllowedNot stated in the judgment

Kariuki v Rugu ( Sued as the Legal Administrator of the Estate of Paul Rogo) & 3 others (Employment and Labour Relations Cause E044 of 2021) [2025] KEMC 252 (KLR)

Employment and Labour Relations Court (magistrates' court, Nakuru)
12 June 2025
3,240 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nakuru court ruled that firing a worker as 'redundant' without written notice, severance pay, or a hearing is unlawful, awarding her over Ksh 2.6 million.

What this practically means

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Executive summary

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The claimant sued the respondents, trading as Westpoint Commercial Stores, alleging she was employed from 1st January 2013 as a sales person and was locked out on 1st February 2018 following the death of the proprietor, later re-engaged on 1st August 2018 on better terms, and then sent home on 20th March 2020 when the business closed due to the Covid-19 pandemic, after which new staff were hired. She claimed both events were redundancies effected without notice, hearing or severance pay, and sought declarations of unfair termination, compensation, notice pay, underpayments, overtime, holiday pay, annual leave, severance pay, service pay and a certificate of service. The respondents admitted employment but alleged the claimant absconded and denied the tabulated claims; they filed no submissions. The court framed the sole issue as whether the redundancy complied with the Employment Act 2007. It found no prior notice, no severance pay, no consultation or hearing, and no records, shifting the burden of proof to the employer under section 10(7). Relying on Kenya Airways v Aviation & Allied Workers Union, Phoebe Mafoya, Mary Kiptum, Cosmus Nyaberi and Edwin Kabogo Munene, the court declared both terminations unlawful and unfair. It awarded compensation of kshs 598,719.24, notice pay of kshs 49,893.27, underpayments of kshs 1,204,108.50, overtime and holiday pay of kshs 645,168.44, severance pay of kshs 106,466.76, ordered issuance of a certificate of service, and awarded costs to the claimant. The claim for unpaid annual leave was dismissed for want of evidence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the redundancy of the claimant in the first and second periods of employment was in accordance with the law and met the criteria set under the Employment Act 2007
  2. 2.What remedies, if any, the claimant is entitled to

Key legal issues

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01

Whether the redundancy complied with section 40 of the Employment Act 2007

Holding

The redundancy did not comply with section 40 and amounted to unfair termination in both periods

Reasoning

The claimant received no prior notice of termination in either period, was not paid severance pay, was not consulted or given a hearing, and the respondent could not demonstrate a fair process. The respondent also admitted hiring new staff after reopening post-Covid, undermining the claimed redundancy. Section 40's conditions are mandatory and their breach renders the termination unfair.

p. 5
02

Burden of proof for employment terms absent written contract and records

Holding

The respondent's failure to keep statutory records shifted the burden of proof to it and prejudiced its defence

Reasoning

Sections 10 and 94 of the Employment Act require written contracts and records of wages, hours, leave and social security contributions. The respondent admitted records were missing and payment was in cash without payslips, triggering section 10(7). Reliance was placed on authorities holding that documentation of the employment relationship is the employer's responsibility, though the claimant still bears an evidential burden.

p. 5
03

Certificate of service

Holding

Denial of a certificate of service violated the Employment Act; the respondent was ordered to issue one

Reasoning

The respondent admitted failing to issue a certificate of service. The court held that a certificate of service is a statutory right, not a favour, and its denial prejudices the employee's future employment prospects.

p. 5
04

Claim for unpaid annual leave

Holding

Dismissed for lack of evidence

Reasoning

Although the respondent produced no records showing the claimant worked only statutory hours, the claimant herself gave no oral or documentary evidence that she applied for leave and was denied, so this head failed while related heads (overtime, holiday pay) succeeded.

p. 6

Legal principles established

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  • Where an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment shifts to the employer
  • An employer declaring redundancy must notify the employee and labour officer in writing one month prior, pay 15 days' severance pay per completed year of service, follow a fair selection criterion and consider alternatives; failure to comply renders the termination unfair
  • Where an employer obligated to produce employment records fails to do so, an adverse inference may be drawn that the claimant's assertions on the point are true

Court orders

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  1. 1.A declaration that the decision by the Respondent to terminate the Claimant's services on 1st February 2018 and on 20th March 2020 on account of redundancy was unlawful and unfair
  2. 2.Compensation for unlawful termination in both the first and second period totaling kshs 598,719.24
  3. 3.Payment of monies owed in lieu of notice in both periods totaling kshs 49,893.27
  4. 4.Payment of all monies emanating from underpayment for both periods totaling kshs 1,204,108.50
  5. 5.Payment of all monies emanating from unpaid overtime and days worked during the holidays totaling Kshs 645,168.44
  6. 6.Payment of severance pay of kshs 106,466.76 for the two periods of service
  7. 7.The respondents to issue a certificate of service to the claimant
  8. 8.Costs of the suit to be paid by the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AN
Aloyce Peter NdegeSenior Principal Magistrate
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act 2007 (provisions as stated in the judgment)

Relief refused

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Claim for unpaid annual leave for both periods

No evidence from the claimant that she applied for annual leave and was denied

p. 6

Service pay / payment of unpaid N.S.S.F dues as pleaded

Not included among the orders granted in the conclusion; only severance pay was awarded

Costs

Cost of the suit to be paid by the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion an order of declaration be and is hereby made declaring that the decision by the Respondent to terminate the Claimant's services on 1ST of February 2018 and on the 20th of march 2020 on account of redundancy was unlawful and unfair and judgment is entered in favor of the claimant against the respondent
p. 7Disposition - declaration of unfair termination
Thus, redundancy is a legitimate ground for terminating a contract of employment provided there is a valid reason based on the operational requirements of the employer and the termination is in accordance with fair procedure.
p. 4Legal test for redundancy (adopted from Kenya Airways v Aviation & Allied Workers Union)
On these facts alone the only conclusion that may be drawn is that the redundancy did not comply with the provisions of section 40 and amounts to an unfair termination.
p. 5Non-compliance with section 40 renders redundancy unfair
Certificate of service is not a favor but a statutory right as its denial prejudices an employee's future employment prospects.
p. 5Certificate of service as a statutory right
The claimant was neither consulted nor given a chance for a hearing when the redundancy decision was being made. This was a violation of section 41(2) of the Employment Act 2007
p. 4Right to be heard before redundancy decision
There was however no evidence from the claimant of whatever nature, oral or documentary, that she applied for annual leave and was denied. I thus do hereby dismiss the claim for annual leave.
p. 6Dismissal of annual leave claim

Issues in the judgment

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minor

The judgment cites section 51 of the Employment Act as governing certificates of service in one passage and section 50(1) in another

minor

The respondents' pleading is internally inconsistent, admitting employment by them while also pleading 'That the respondent was employed on a retainer salary of ksh 3,500'

minor

The judgment misstates the severance pay provision, stating 'an employee to pay the employer a severance pay'

minor

The claimant's start date is inconsistently stated as 1st January 2013 in the memorandum of claim recital but the salary progression refers to initial retention 'up to the 31st of December 2013' from ksh 3,500, and the respondents aver employment from 1st January 2006

minor

The severance pay award in the conclusion (kshs 106,466.76 for both periods) is half the sum awarded in the body for the first period alone (kshs 74,976.49) plus the second period (kshs 31,490.27), which would total kshs 106,466.76 - the totals do reconcile, but the body describes them as sums for each period separately

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kariuki v Rugu ( Sued as the Legal Administrator of the Estate of Paul Rogo) & 3 others (Employment and Labour Relations Cause E044 of 2021) [2025] KEMC 252 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/252/eng@2025-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.